Can You Disinherit Someone in a New York Will?

Yes — in New York you can disinherit most people in your will, including adult children, siblings, friends, and other relatives. There is one major exception: you generally cannot fully disinherit a surviving spouse. Under New York’s spousal right of election (EPTL 5-1.1-A), a surviving husband or wife can claim a minimum share of your estate no matter what your will says. Everyone else can be left out — but only if your will is drafted clearly, executed correctly, and worded so that your intent cannot be misread. This guide walks through who you can and cannot disinherit in New York, how the right of election works, and a step-by-step checklist for making your wishes stick.

Who You Can — and Cannot — Disinherit in New York

New York gives you broad freedom to decide who receives your property. But that freedom is not unlimited. Here is the practical breakdown:

Person	Can you disinherit them?	Key rule
Adult children	Yes	No child has an automatic right to inherit; you may leave them nothing.
Minor children	Yes (with care)	No forced inheritance, but always plan for guardianship and support.
Surviving spouse	No (mostly)	Protected by the spousal right of election (EPTL 5-1.1-A).
Siblings, cousins, friends	Yes	No legal claim to your estate.
Parents	Yes	No forced share in New York.
Estranged relatives	Yes	Often the central reason people make a will at all.

Two points surprise most people. First, New York does not protect children from disinheritance. Unlike a spouse, an adult or even a minor child has no statutory right to a share. Second, the spouse’s protection is automatic — it exists even if your will explicitly says “I leave my spouse nothing.”

Why “no will” is the worst plan

If you die with no will at all, you do not get to choose who is left out. Instead, EPTL Article 4 (intestacy) distributes your property to your closest next of kin by a fixed formula — typically your spouse and children first. That means an estranged relative could inherit by default. Disinheriting someone is only possible through a valid will. To understand the default rules you are overriding, see our overview of what happens with no will (intestacy).

The Spousal Right of Election (EPTL 5-1.1-A)

This is the single biggest limit on disinheritance in New York. A surviving spouse may “elect against the will” and claim a statutory minimum share of the estate — even if the will leaves them nothing, or less than that minimum.

The right of election is designed to protect a spouse from being cut out entirely. A few practical realities to understand:

• It applies regardless of will language. Writing “I intentionally leave my spouse nothing” does not defeat the election.
• The spouse must affirmatively claim it. The election is a right, not an automatic distribution; the surviving spouse must assert it within the time the law allows after the will is admitted to probate.
• It can be waived. A spouse can give up the right of election in a valid written agreement — most often a prenuptial or postnuptial agreement signed and acknowledged the way the law requires.
• It reaches certain non-probate assets. The election is calculated against an “augmented” estate that can include some assets that pass outside the will, so you cannot simply move everything into beneficiary designations to dodge it.

Because the exact share and calculation depend on your full asset picture, the only reliable way to know how the election affects your plan is to have an attorney model it against your real estate. Do not rely on a generic online figure.

The practical takeaway for spouses

If your goal involves leaving your spouse less than the statutory minimum, a will alone will not accomplish it. You will typically need a properly executed marital agreement (a waiver) — and that agreement must be valid on its own terms. A will that contradicts your spouse’s protected share simply invites an election and a contested probate.

How to Disinherit Someone Correctly: A Step-by-Step Checklist

Disinheritance fails most often not because the law forbids it, but because the will was vague, poorly executed, or easy to challenge. Use this checklist to make your intent enforceable.

1. Name the person — don’t just stay silent. Courts read silence as oversight. State clearly that you are intentionally leaving the person nothing. Use their full name.
2. Avoid the “pretermitted heir” trap. A child born or adopted after the will is signed may have rights if the will doesn’t address them. If your family may grow, address future children expressly. Our will-drafting overview explains how this is handled.
3. Do not leave a token gift “to be safe.” A confusing token gift can create ambiguity. Make your intent unmistakable instead.
4. Consider why you might add a no-contest clause. New York recognizes “in terrorem” (no-contest) clauses in limited form; they can discourage challenges from someone you’ve left a small amount. Discuss whether one fits your situation.
5. Execute the will exactly the way New York requires. This is where disinheritance most often unravels — see the next section.
6. Keep your will current. Marriage, divorce, new children, or moving to New York from another state can change everything. Update through a properly executed codicil or amendment, or a new will.
7. Document capacity and freedom from pressure. A disinherited person’s most common attack is “unddue influence” or “lack of capacity.” A clean, attorney-supervised execution is your best defense.

Execution Is Where Disinheritance Succeeds or Fails

A will only controls who inherits if it survives probate in the Surrogate’s Court. A will that is sloppily signed is an open invitation for a disinherited relative to challenge it — and if it’s thrown out, intestacy takes over and the very person you tried to exclude may inherit after all.

New York’s execution rules under EPTL §3-2.1 are strict:

• The will must have at least two attesting witnesses.
• Both witnesses must sign within one 30-day period (there is a rebuttable presumption that the 30-day requirement was met).
• The testator must sign at the end of the will — or another person may sign in the testator’s presence and at their direction.
• The testator must declare the document to be their will (this is called publication).
• The testator must sign in the witnesses’ presence or acknowledge the signature to each witness; the witnesses then sign at the testator’s request and add their residence addresses.

Note that a will and a “living will” are entirely different documents. A will distributes your property at death; a living will is a health-care directive about end-of-life treatment and has nothing to do with disinheritance. Don’t confuse the two.

For the full set of formalities, review our pages on New York will requirements and will execution. Getting these right is what makes your disinheritance decision actually hold up.

Frequently Asked Questions

Can I disinherit my children in New York?
Yes. New York does not give children — adult or minor — an automatic right to inherit. You may leave a child nothing, but you should name them and state your intent clearly to prevent a claim that the omission was an accident.

Can I completely disinherit my spouse?
Generally no. Under EPTL 5-1.1-A, a surviving spouse can elect against your will and claim a statutory minimum share. The most reliable way to limit a spouse’s share is a valid prenuptial or postnuptial waiver, not the will alone.

What happens if I have no will at all?
EPTL Article 4 (intestacy) takes over and distributes your estate to your next of kin by a fixed formula. You lose all control over who is excluded — which is exactly why a will is essential if you want to disinherit anyone.

Will a no-contest clause stop a disinherited relative from suing?
New York recognizes no-contest (“in terrorem”) clauses in a limited way. They can discourage a challenge from someone left a smaller gift, but they are not a substitute for a clearly drafted, properly executed will. An attorney can tell you whether one fits your plan.

Talk to a New York Estate Planning Attorney

Disinheritance is one of the most challenged areas of estate law — and the small drafting and execution details are what decide whether your wishes are honored. At Morgan Legal Group, Russel Morgan, Esq. and our team draft wills that say exactly what you mean and stand up in the Surrogate’s Court.

Ready to protect your wishes? Schedule a 30-minute consultation with Russel Morgan, Esq. to review your situation and build a plan that holds.

Further reading from Morgan Legal Group: why estate planning is so important.